Fifth Circuit skeptical of abortion law critics

A three-judge panel of the Fifth Circuit Court of Appeals expressed skepticism Monday over arguments that a new Texas abortion law creates an “undue burden” on women attempting to obtain the procedure, even though abortion rights advocates say the new law has closed all clinics in the Rio Grande Valley, forcing women there to travel hundreds of miles.

“You know how long that takes in Texas at 75 miles an hour?” asked Justice Edith Jones. “That’s a particularly flat highway.”

Jones’ remarks came during an hour-long argument in which she and two other justices, Jennifer Elrod and Catharina Haynes, peppered Janet Crepps, an attorney for the Center for Reproductive Rights, on the assertions by a consortium of abortion providers that Texas’ new law requiring abortion doctors to obtain admitting privileges at local hospitals creates an “undue burden” for women seeking the procedure.

While abortion rights advocates initially claimed that as many as one-third of the state’s abortion clinics would be closed because doctors could not meet that requirement, Texas Solicitor General Jonathan Mitchell pointed out that some clinics — including in Austin and San Antonio — have been able to reopen in recent weeks. “What actually has happened is that clinics Planned Parenthood said would close are now open,” he argued.

Crepps told the judges that the law’s effect means that many women in the Rio Grande Valley are barred from exercising their constitutional right to abortion as “a direct result of House Bill 2 (the new law.) Before House Bill 2, there were abortion providers in the Rio Grande Valley. Now there are none.”

The justices drilled Crepps on the broad claim by abortion rights advocates that the new law should be declared unconstitutional across the board, instead of challenging it on a case-by-case basis.”Texas is a big place,” Haynes said. “House bill 2 is not a problem in Houston or Dallas. It may be a problem in the Rio Grande Valley. Why not bring an as-applied (case-by-case) challenge to the law there?”

Texas Alliance for Life spokesman Joe Pojman said after the hearing he was gratified by the judges’ questions, particularly about the claims that “this law has closed abortion facilities.” Pojman said he believed many clinics closed before the law took effect because they could not find doctors to perform abortions. He noted that the U.S. Supreme Court allows states to “regulate abortion to insure that women have enough information to make an informed decision and to protect the safety of women. That’s all this bill does.”

However, Amy Hagstrom Miller, who operates Whole Women health clinics which provide abortions in Fort Worth, San Antonio, MeAllen, Austin and Beaumont, said her facilities have reduced their operations because local hospitals are reluctant for political reasons to grant admitting privileges to doctors who perform abortions. “There is no hope of getting privileges” in the Rio Grande Valley, she said. “I can’t get the hospitals to send me applications.”